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Out on a limb: International law in the earlier Middle Ages

I’m a bit nervous. Next week I’m presenting a piece from my forthcoming book at the ‘Law and Legal Agreements’ conference in Cambridge, organised by the Voices of Law international network. I will contend that there was a notion of international law in the earlier Middle Ages. It will be the first time I am presenting this idea in some detail and I know from talking to people about my research, that the idea will be contentious both in terms of theoretical framework and in terms of the evidence used.

No, I won’t discuss the meaning of the word ‘international’ or the supposed ‘universality’ of international law, nor the difficulty of applying these concepts to the medieval period. And, I won’t talk about the revival of Roman law and the contribution of Canon law to this topic either, nor about the fact that any assumption that there was no international law in the medieval period is currently not based on an examination of the two most important sources for it: treaties and custom. I feel like I’ve done that already and have nothing to add to anything I previously said!

Instead, I am following the very simple formula of Martin Dixon in his Textbook on International Law that ‘the most cogent argument for the existence of international law as a system of law is that members of the international community recognise that there exists a body of rules binding upon them as law’, and that the evidence of this can be seen through (1) its regular practise, (2) through the justification of action, and (3) through the fact that the majority of international legal rules are consistently obeyed (Dixon 2013: 4). My evidence is those treaties – or legal agreements – produced in the period c. 700 to c. 1200, as well as descriptions of customs, and their links to domestic laws and practices.

It will come as no surprise to many that I argue that one of the best ways to see (1) in the medieval period is to look at the practices surrounding displacement of people and in particular expulsion – exile, banishment, outlawry or whatever we want to call it. The expulsion of individuals who had committed reprehensible acts was one of the ways in which medieval rulers and communities dealt with law and order. As an alternative to corporal punishment, such as mutilation or death, expulsion from a political entity – whether we view this as a city, region or kingdom – was reserved for the most serious offences; those which could not be atoned for with compensation. However, while expulsion was intended to ensure law and order on a domestic level, it could result in becoming a threat to peace and security on an ‘international’ level. Primarily this was because, once expelled, such individuals often committed further reprehensible acts and/or engaged in conflict against the entity from whence they had come. The provisions for dealing with this threat in treaties, in customs, and in domestic laws and practices, show a more co-ordinated and systematic approach than medieval scholars have perhaps appreciated in the past. One could, and I will, argue similarly for other provisions, and, in my paper, I will use those for arbitration and trade to show some of the possibilities for (2) and (3).

In short, I will argue that as there were no nation states in medieval Europe, it is inevitable that traditional views of state-centred international law and institutions must give way to a different model – the one I’m presenting – which recognises the plurality of law and that the locus of political and legal power in the Middle Ages was multi-layered.

I hope to see some of you in Cambridge next week, prepared, as a very good friend and colleague told me today, with those awkward questions I often target at others. Well, I am not averse to taking risks and simply throwing myself down that ski slope that turned out to be off-piste or riding on that roller coaster that got stuck at the top for hours. Bring it on!